Board of Managers of the Europa Condominium v. Orenstein

—Order, Supreme Court, New York County (Jane Solomon, J.), entered June 15, 1999, which directed plaintiff to execute, within 24 hours of its presentment, defendant’s application for a building permit and which, upon plaintiff’s refusal, granted defendant authority to execute it on plaintiffs behalf, affirmed, [355] without costs. Order, same court (Franklin Weissberg, J.), entered April 12, 2000, which denied plaintiffs motion to modify the June 15, 1999 order to the extent of declaring that defendant had no right to execute the building permit application on plaintiffs behalf, and which granted defendant’s cross motion for a declaration that he was entitled to submit the application to the Buildings Department without plaintiffs approval, affirmed, without costs. Defendant is the owner of the single commercial unit in the Europa Condominium, governed by plaintiff Board of Managers, which otherwise consists of 26 residential units. The commercial unit is located at the southwest corner of the building on three levels, comprising a portion of the cellar floor, a portion of the lobby on the ground floor and a “mezzanine” level in between. This dispute concerns defendant’s proposed addition of some 585 square feet of floor space by extending the poured concrete slab forming the mezzanine floor. As noted in Supreme Court’s order entered June 15, 1999, the concrete floor is located wholly within defendant’s commercial unit and forms no part of the common elements of the condominium. Therefore, the court properly found that extension of the slab was not subject to approval by plaintiff Board of Managers. Plaintiff has not established that the proposed alterations would adversely affect the use of the residential units for their intended purpose, and the consent of the condominium’s residential owners was therefore not required. While the ground under the cellar floor is defined as a common element, the by laws provide that the board will approve the commercial owner’s alterations to common elements if the improvements do not adversely affect operation of the building, its systems and structural integrity, do not impair the use of residential units and do not encroach on common areas. The condominium declaration grants defendant the right to make alterations, “whether structural or nonstructural, interior or exterior, ordinary or extraordinary” as long as the structural integrity of the building is not impaired and the work does not involve a physical modification to other units or to common interests. To the extent that the project involves excavation, plaintiff has failed to demonstrate that such work on a surface contained entirely within the boundaries of the commercial unit will violate these conditions or offend the laws of this State (see, Real Property Law §§ 339-i, 339-k). In our estimation, the dissenter reads Real Property Law § 339-k too broadly, in effect rendering the qualification of “affected” to “unit owners” mere surplusage (Matter of Brusco v [356] Braun, 199 AD2d 27, 30, affd 84 NY2d 674; see also, Sanders v Winship, 57 NY2d 391, 396; McKinney’s Cons Laws of NY, Book 1, Statutes § 98 [a]). While “affected” is not defined in the Condominium Act (Real Property Law art 9-B [§ 339-e]), its import can be gathered from an examination of section 339-i (2), which provides: “The common interest appurtenant to each unit * * * shall have a permanent character and shall not be altered without the consent of all unit owners affected * * * The common interest shall not be separated from the unit to which it appertains. Nothing contained in this article shall prohibit the division of any unit and common interest appurtenant thereto in a non-residential unit in the manner permitted by the declaration and bylaws.” It is apparent that the requirement to obtain the consent of “affected” unit owners before proceeding to “excavate any additional basement or cellar” (§ 339-k) denotes the owners of units “appurtenant” to the common interest — the land (§ 339-e [3] [a]) — which is sought to be altered (§ 339-i [2]). While any alteration that threatens the integrity of the structure is a common concern to all unit owners, had the Legislature intended to require their consent, it would have provided for “the unanimous consent of the unit owners” (§ 339-Z [1] [lien against common elements]). Moreover, nothing in the statute or bylaws abrogates the necessity to obtain a building permit before undertaking construction, and the Buildings Department may be relied upon to exercise the requisite oversight to see that structural integrity remains unimpaired. The alteration sought to be made by the owner of the commercial unit is expressly contemplated by the applicable statute (§ 339-k) and specifically permitted by the condominium bylaws. Section 5.2 (B) provides that, contrary provisions notwithstanding, “the Commercial Unit Owner shall have the right pursuant to the terms of Article 12 of the Declaration, without the approval of the Condominium Board, to (I) make any alterations, additions, improvements, or repairs in or to the Commercial Unit * * * whether structural or nonstructural, interior or exterior, ordinary or extraordinary.” Article 12 of the declaration specifically confers the right “to change the size of Commercial Units by * * * altering the boundary of the Commercial Unit (including, without limitation, incorporating in such Commercial Unit a space or other area forming a part of the Common Elements which services or benefits only such Commercial Unit and does not affect access to any other Unit).” This provision clearly encompasses the land beneath the commercial unit, which constitutes part of the “common elements” within the definition of article 7. Concur — Tom, J. P., Ellerin, Wallach and Rubin, JJ.